Private Conduct and Professional Discipline

Attorney Joseph Masterson married Mary Masterson in 1956. Forty-one years later, he purportedly married Mingli Yang without divorcing his first wife. At the time of his second wedding, Mr. Masterson submitted an application to the city clerk falsely affirming he had never been married. The Appellate Division, Second Department, determined that Masterson had engaged in illegal conduct involving moral turpitude, in violation of DR 1-102(A)(3) of the New York Lawyer’s Code of Professional Responsibility and disbarred him.1 The brief decision makes no reference to Mr. Masterson’s competence or legal ethics.

Although the facts in Masterson are, of course, unusual, the decision is not. Cases abound in which lawyers are severely disciplined for a lack of integrity having nothing to do with their law practice.

In one case, an Illinois lawyer was censured for plagiarizing two public works in a master’s thesis.2 The Illinois Supreme Court held that discipline was appropriate in view of the lawyer’s complete disregard for values that are most fundamental to the legal profession.3 Other instances of conduct not directly related to law practice giving rise to professional discipline have included: promoting prostitution;4 assault;5 failure to pay child support;6 use of certain illegal drugs;7 and predatory sexual behavior.8

Sanctioning Lawyers

Authority to sanction lawyers for private misconduct derives from several sources. In New York, any lawyer convicted of a state felony or an analog crime in another jurisdiction is automatically disbarred under Judiciary Law 90(4)(a), (e). Similarly, a New York lawyer who commits a serious crime as defined in Judiciary Law 90(4)(d) is subject to professional discipline regardless of the relationship between the offending conduct and the attorney’s practice.9 Various provisions of the Lawyer’s Code provide additional bases for such actions: DR 1-102(A)(3) (as amended) [illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer]; DR 1-102(A)(4) [conduct involving fraud, dishonesty, deceit, or misrepresentation]; DR 1-102(A)(5) [conduct prejudicial to the administration of justice]; and DR 1-102(A)(7) [a catch-all prohibiting other conduct that adversely reflects on fitness to practice law]. Finally, the Appellate Divisions themselves have declared that their power to discipline attorneys extends to all acts that reflect adversely upon the legal system and are not in accordance with the high standards imposed on members of the bar.10

Fair Game

The foregoing Judiciary Law sections, Code provisions, and case law support an argument that any private act of misconduct is fair game for a disciplinary prosecution. But despite this authority, the disciplinary bodies do not, and due to resource constraints cannot, prosecute every allegedly bad act committed by a lawyer that comes to their attention. There is no question, of course, that bigamy, plagiarism, acts of violence, and illegal drug use entail anti-social behavior that society has every right to criminalize and regulate civilly. There is also no real dispute that the disciplinary system must address fundamentally dishonest conduct, such as fraud, even if not within the context of an attorney-client relationship, so crooked lawyers are eliminated before they can victimize clients, adversaries, third parties, or the courts.

But why should grievance committees regulate non-honesty-related bad acts unless the attorney’s ability to practice law ethically is affected when other licensed professionals are not subject to such scrutiny? People may not care whether their CPA was in a barroom brawl, their licensed plumber smoked pot long ago, or their dentist has not been paying timely child support. Should lawyers be treated differently?

Professional Scrutiny

The distinction between private conduct properly subject to professional scrutiny and behavior that implicates purely personal morality or involves relatively trivial offenses is neither philosophically nor practically easy to establish. However, it appears the courts are limiting the scope of their own authority to sanction private conduct and thereby signaling that disciplinary bodies do the same. Thus, in 1999, following heavy criticism, DR 1-102(A)(3) – the principal rule invoked in Masterson – was amended so it no longer enjoins illegal conduct involving moral turpitude. It now prohibits only illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness, or fitness as a lawyer. This reformulation tightened an impossible to define rule to require at least some relationship between the conduct and the attorney’s ability to practice law ethically.11

The reformulation of DR 1-102(A)(3) to focus more specifically on conduct reflecting on a lawyer’s fitness, as opposed to the hopelessly subjective concept of moral turpitude, provides a good starting point in criminal conviction cases to demark the line that appears to be between felonies or felony analogs and serious crimes vs. minor infractions that do not implicate a lawyer’s integrity or fitness to practice.12

Still, the line is not clear at the margin. A DWI conviction, for example, poses a significant risk to the public and reflects a serious disregard for one’s legal responsibilities. On the other hand, a lawyer convicted of DWI on one occasion, particularly if engaged in rehabilitation, probably should not have his or her professional livelihood jeopardized.

One alternative is a private, confidential sanction. However, private discipline would serve only to punish – something courts have repeatedly said is not the rationale of professional discipline.13 The public would not be better protected against or informed about the attorney, since it would not know of the confidential sanction; and deterrence is better achieved through the criminal justice system.14 Consequently, an isolated DWI conviction should normally fall below our suggested line, and should not, standing alone, provide a basis for disciplinary action.

Fraudulent Conduct

It is axiomatic that a lawyer cannot knowingly counsel or assist a client who engages in illegal or fraudulent conduct.15 An attorney, therefore, cannot advise a client to avoid a court date, fail to appear in response to a bench warrant, or secrete funds in order to defraud creditors. It logically follows that a lawyer should be subject to discipline for personally engaging in the same conduct for which discipline would be imposed in an attorney-client context. Courts have thus disciplined lawyers for corrupt personal acts involving civil fraud,16 plagiarism,17 and extortion,18 for example.

Since every illegal or fraudulent act committed by a lawyer necessarily reflects adversely on the lawyer’s honesty and fitness as a attorney, disciplinary authorities should therefore be able to act against an attorney committing fraud even if his or her misconduct occurred completely outside the practice of law. The realm of illegal and fraudulent misconduct is no place for a dividing line of any sort.

Non-Fraudulent Conduct

Finally, personal conduct that is neither illegal nor fraudulent might, theoretically at least, subject a lawyer to professional discipline under existing law. In our view, such conduct should be off-limits.

One ethics professional has argued that the distinction between private acts and conduct related to law practice is unworkably artificial; constitutes an attempt to avoid accountability for wrongdoing; and lets lawyers off the hook when it comes to personal morality.20 Those who espouse a no line rule would make any supposedly immoral conduct potentially subject to discipline.

Critics of such an expansive view contend, on the other hand, that regulators should demonstrate a connection between alleged misconduct of this nature and the practice of law.21 Otherwise, it is not clear how to avoid the conclusion that any personal, morally questionable behavior should be open to government examination. Taken to its extreme, disciplinary authorities could investigate whether lawyers were cheating on their spouses, telling white lies or disturbing their neighbors by playing music too loud.

But in our view, it makes little sense to use the disciplinary process to unearth private sins that have no true bearing on a lawyer’s professional life. Nor, from a societal standpoint, is the invasion of privacy that would inevitably result from such a regime justified by the negligible (if any) public benefit that a catalog of lawyer misdeeds would provide. A lawyer’s public reputation is his or her stock-in-trade, and the danger is just too great that a lawyer’s minor transgression would be blown out of proportion, with the lawyer’s practice damaged, in obeisance to a rigid notion of ethical purity.

Conclusion

Regulatory authorities have often sought to impose professional discipline upon lawyers for engaging in purely private misconduct. The authority to do so stems both from legislative enactments and judicially adopted ethics rules. The underlying rationale is that certain private misbehavior may well demonstrate the lack of qualities necessary to practice law and harms the reputation of the bar in the eyes of the public. This would be true in the case of a serious criminal conviction or an instance of illegal or fraudulent conduct. On the other hand, purely private misconduct that has no connection to any duty owed to a client, the bar, or the public should not be the subject of disciplinary regulation.

Reprinted with permission from the July 23, 2002 edition of the New York Law Journal ©2002 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – reprints@alm.com or visit www.almreprints.com.

  1. Matter of Masterson, 283 A.D.2d 20, 726 N.Y.S.2d 114 (2d Dep’t 2001).
  2. In re Lamberis, 93 Ill.2d 222, 443 N.E.2d 549 (1982).
  3. Id., 443 N.E.2d at 551, 551-552.
  4. See, e.g., Matter of Cincotti, 115 A.D.2d 24, 499 N.Y.S.2d 736 (1st Dep’t 1986).
  5. See, e.g., Matter of Stockton, 188 A.D.2d 10, 593 N.Y.S.2d 79 (2d Dep’t 1993).
  6. See, e.g., Matter of Rosoff, 225 A.D.2d 197, 650 N.Y.S.2d 149 (1st Dep’t 1996).
  7. See, e.g., Matter of Hildebrand, 221 A.D.2d 85, 643 N.Y.S.2d 105 (1st Dep’t 1996).
  8. See, e.g., Matter of Wong, 275 A.D.2d 1, 710 N.Y.S.2d 57 (1st Dep’t 2000).
  9. Evidently, the categories listed in Judiciary Law 90(4)(d) reflect the Legislature’s judgment that such conduct seriously undermines the reputation and integrity of the bar and should therefore result in professional as well as criminal consequences.
  10. See, e.g. Matter of Nixon, 53 A.D.2d 178, 181-82, 385 N.Y.S.2d 305, 307 (1st Dep’t 1976).
  11. See Simon’s Code of Professional Responsibility Annotated 23 (2001 ed.) (A court may discipline an attorney [under DR 1-102(A)(3)] for misconduct outside the practice of law if the misconduct shows the person to be dishonest, untrustworthy, or otherwise unfit to practice law.)
  12. Helpful support for this proposed bright line rule can be found in the ABA Model Rules of Professional Conduct which, while not formally adopted in New York, are in effect in the vast majority of states and thus provide some guidance. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligations. Model Rule 8.4, comment 2; see, e.g., Matter of Higgins, 105 A.D.2d 462, 480 N.Y.S.2d 257 (3d Dep’t 1984) [criminal conviction for possession of a small quantity of marijuana not violative of DR 1-102(A)(3)’s moral turpitude standard]; In re Johnson, 106 Ariz. 73, 471 P.2d 269 (1970) [no discipline imposed on lawyer charged with isolated instance of assault].
  1. See Matter of Levy, 37 N.Y.2d 279, 281, 372 N.Y.S.2d 41 (1975).
  2. Vehicle and Traffic Law 1193(1)(c).
  3. DR 7-102(A)(7).
  4. See, e.g. Matter of Sylvor, 225 A.D.2d 87, 648 N.Y.S.2d 440 (1st Dep’t 1996).
  5. See, e.g., In re Lamberis, supra.
  6. See, e.g., Matter of Yao, 250 A.D.2d 221, 680 N.Y.S.2d 546 (1st Dep’t 1998).
  7. Althoff, Barrie, Big Brother is Watching: Discipline for Private Conduct, in The Professional Lawyer, ABA Center for Professional Responsibility at 81-106 (The 2000 Symposium Issue).
  1. See Vol. 16, ABA/BNA Lawyer’s Manual on Professional Conduct, 283-284 (June 7, 2000).

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